UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEVEN S. BROWN, 

Plaintiff, 

Case No. 2:13-cv-00006 

v. JUDGE GREGORY L. FROST 

Magistrate Judge Terence P. Kemp 

DIRECTOR MOHR, et al., 

Defendants. 

 ORDER 

This matter is before the Court for consideration of the Magistrate Judge’s December 17, 

2015 Report and Recommendation and Order (ECF No. 139), Plaintiff’s objections (ECF No. 

146), Defendants’ objections (ECF No. 148), and Plaintiff’s response to Defendants’ objections 

(ECF No. 152). Plaintiff, Steven S. Brown, is an Ohio inmate who is currently incarcerated at 

the Ohio State Penitentiary in Youngstown, Ohio. The Magistrate Judge conducted an initial 

screen and recommended that the Court should dismiss Plaintiff’s claims under 28 U.S.C. §§ 

1915(e)(2)(B) and 1914A. (ECF No. 9, at Page ID # 45.) Both sides have filed objections to the 

recommendations. Briefing on the objections has closed, and the Report and Recommendation 

and Order and objections are ripe for disposition. 

When a party objects within the allotted time to a report and recommendation, the Court 

“shall make a de novo determination of those portions of the report or specified proposed 

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. 

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 

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Plaintiff’s objections target the Magistrate Judge’s recommendation that this Court 

essentially reform the third amended complaint by striking various paragraphs and construing the 

named defendants as suggested in the Report and Recommendation and Order. Plaintiff also 

targets the Magistrate Judge’s denial of his motion to “unstrike” the second amended complaint. 

None of Plaintiff’s objections are persuasive. As discussed more fully below, the 

Magistrate Judge has, to a degree, “sanctioned” Plaintiff by reworking his third amended 

complaint into a compliant pleading that does not run afoul of this Court’s orders. This sanction 

does not penalize Plaintiff, however, but aids him in that it sufficiently mitigates pleading that 

this Court will accept as good faith missteps in complying with prior orders. Plaintiff’s 

explanations and justifications as to why he plead as he did are largely based on his misreading 

of the relevant law and orders governing his case. In the Report and Recommendation and 

Order, the Magistrate Judge explained in significant detail where and how Plaintiff went astray 

in his latest pleading. This Court need not repeat that analysis here, but simply adopts and 

incorporates it by reference. The Court consequently overrules all of Plaintiff’s objections. 

Defendants also object, specifically targeting the recommended denial of their motion to 

dismiss. They first argue that the Magistrate Judge erred in reaching legal conclusions that are 

contrary to law and that he failed to evaluate four factors relevant to dismissal under Federal 

Rule of Civil Procedure 41(b). This Court disagrees with both contentions. Although 

Defendants may disagree with the Magistrate Judge’s conclusions, Defendants should credit that 

the Magistrate Judge was aware of and applied analysis covering the Rule 41(b) factors. 

Rule 41(b) provides a mechanism for Defendants to move for dismissal “[f]or failure of 

the plaintiff to prosecute or to comply with [the Federal Rules of Civil Procedure] or any order of 

court.” Some considerations attach to this rule; the Sixth Circuit has explained that “[w]hen 

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contemplating dismissal under Rule 41(b), a court must consider: (1) whether the party’s failure 

to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by 

the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to 

cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or 

considered before dismissal was ordered.” Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 

(6th Cir. 1998) (citing Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-

55 (6th Cir. 1988)). 

First, the Magistrate Judge considered whether Plaintiff’s conduct was due to willfulness, 

bad faith, or fault and expressly rejected the negative conclusion that Defendants present as a 

given. The Magistrate Judge concluded that the “current amended complaint [was] an attempt to 

comply” with the Magistrate Judge’s previous orders. (ECF No. 139, at page ID # 1210.) In 

reaching this conclusion, the Magistrate Judge credited Plaintiff with good faith intentions but 

less than fully effective implementation of those intentions. 

Second, the Magistrate Judge also implicitly considered whether Defendants were 

prejudiced by Plaintiff’s conduct. This is evident in the Magistrate Judge’s explaining that “the 

defendants’ concerns easily can be addressed by the Court’s review and construction of the 

amended complaint for purposes of going forward.” (Id. at Page ID # 1211.) To cure potential 

prejudice, the Magistrate Judge recommended that the Court strike numerous paragraphs of the 

relevant complaint and appropriately limit the defendants named. Some potential prejudice 

caused by Plaintiff’s pleading was consequently remedied; the remaining prejudice related to the 

inconvenient nature of Plaintiff’s multiple filings simply does not rise to the level of conduct 

warranting the harsh sanction of dismissal. 

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Third, the Magistrate Judge was fully aware that Plaintiff had been warned that a failure 

to cooperate with his pleading obligations and this Court’s Orders could lead to dismissal. The 

Magistrate Judge even reproduced in the Report and Recommendation and Order the exact prior 

language that warned Plaintiff that a failure to file a compliant amended complaint may result in 

a recommendation of dismissal. (Id. at Page ID # 1205.) 

Fourth, the Magistrate Judge also implicitly recognized that sanctions less drastic then 

dismissal were previously imposed and, in deciding whether to recommend dismissal now, the 

Magistrate Judge again elected to recommend less drastic sanctions. These sanctions involved 

striking parts of the operative pleading and construing it appropriately as opposed to 

recommending dismissal. This Court agrees that under the specific circumstances presented 

here, striking multiple complaint paragraphs and narrowing the claims and defendants remains 

preferable to outright dismissal of all the claims. 

All of these considerations lead to the conclusion that although Defendants may disagree 

with the rationale of the Magistrate Judge and may not like his conclusions, they are nonetheless 

incorrect in asserting that the Magistrate Judge framed the issue too narrowly and applied 

erroneous law. Defendants cite Plaintiff’s repeated filings as evidence of willfully disobedient 

conduct evincing bad faith, but in doing so they overlook another possibility that is an equally if 

not more probable inference from the record: Plaintiff is a pro se inmate who is largely 

uneducated in the law and often inept in his self-representation, but he is nonetheless trying to 

assert legal arguments and claims that he thinks are valid. 

Defendants also fault the Magistrate Judge for failing to distinguish two district court 

opinions that ordered dismissal. But these cases are persuasive authority that are neither binding 

on this Court nor identical to this case except in the broadest senses. 

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This Court overrules Defendants’ first objection that the legal conclusions in the Report 

and Recommendation and Order are contrary to law. This leads to Defendants’ second objection 

in which Defendants assert that the Magistrate Judge’s Report and Recommendation and Order 

is clearly erroneous because he mistakenly found that the third amended complaint was an 

attempt to comply with prior court orders. In partial support of this contention, Defendants 

assert that Plaintiff’s objections “conclusively prove that he did not, in fact, attempt to comply 

with the Court’s Orders” and “that he purposely flouted the Court’s Orders” by pleading as he 

did. (ECF No. 148, at Page ID # 1262.) These contentions are simply a recast attack on the 

finding and conclusion that Plaintiff was trying to comply but often failed in his attempt. 

In his briefing, Plaintiff admits that he “was just plain wrong” in several of his 

assumptions about the law and orders governing this litigation and asserts that he “is an ignorant 

inmate!!” (ECF No. 152, at Page ID # 1295.) Self-serving hyperbole aside, Plaintiff’s point is 

clear: he has made mistakes, but not ones warranting dismissal of potentially meritorious claims. 

There is of course some support in the record for the proposition that Plaintiff has 

engaged in bad faith litigation choices. There is also support in the record that Plaintiff is 

attempting to proceed properly while lacking an ideal set of requisite skills and abilities. The 

former possibility permits but does not mandate dismissal, and the latter possibility weighs 

against dismissal. The bottom line is that the Magistrate Judge’s basis for his recommendations 

is valid and his recommended, pragmatic approach is the most reasonable course of action at this 

juncture. The Court therefore also overrules Defendants’ second objection. 

For the foregoing reasons, the Court OVERRULES the parties’ objections (ECF Nos. 

146, 148) and ADOPTS and AFFIRMS the Report and Recommendation and Order (ECF No. 

139). This Court therefore DENIES Defendants’ motion to dismiss (ECF No. 135) and limits 

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the construed third amended complaint in accordance with the Report and Recommendation and 

Order’s summary set forth at ECF No. 139, at Page ID # 1218. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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